Holder: No 'Moneyball' in sentencing

8/1/14 9:00 AM EDT

As the data-crunching techniques popularized in the movie "Moneyball" make their way into nearly all corners of American life, Attorney General Eric Holder is trying to draw the line in one area: criminal sentencing.

In a speech to criminal defense lawyers Friday and in a report submitted to the U.S. Sentencing Commission, Holder argues that basing sentences on tools which attempt to precisely calculate a criminal's chance of re-offfending is likely to increase the sentences of minority offenders, while letting (often white) white-collar criminals off easy.

"It’s increasingly clear that, in the context of directing law enforcement resources and improving reentry programs, intensive analysis and data-driven solutions can help us achieve significant successes while reducing costs. But particularly when it comes to front-end applications – such as sentencing decisions, where a handful of states are now attempting to employ this methodology – we need to be sure the use of aggregate data analysis won’t have unintended consequences," Holder told the National Assication of Criminal Defense Lawyers conference in Philadelphia, according to prepared remarks.

"By basing sentencing decisions on static factors and immutable characteristics – like the defendant’s education level, socioeconomic background, or neighborhood – they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society," Holder said. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."

The Justice Department report advances the same argument.

"Most current risk assessments...determine risk levels based on static, historical offender characteristics such as education level, employment history, family circumstances and demographic information. We think basing criminal sentences, and particularly imprisonment terms, primarily on such data - rather than the crime committed and surrounding circumstances - is a dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools," DOJ's annual report to the sentencing commission declares. "This phenomenon ultimately raises constitutional questions because of the use of group-based characteristics and suspect classifications in the analytics. Criminal accountability should be primarily about prior bad acts proven by the government before a court of law and not some future bad behavior predicted to occur by a risk assessment instrument."

"Experience and analysis of current risk assessment tools demonstrate that utilizing such tools for determining prison sentences to be served will have a disparate and adverse impact on offenders from poor communities already struggling with many social ills," the report adds. "The touchstone of our justice system is equal justice, and we think sentences based excessively on risk assessment instruments will likely undermine this principle."

Holder's cautionary stance on data-driven sentencing puts him at odds with a bipartisan group of lawmakers, including some Democrats he's usually closely aligned with. In the House, Reps. Jason Chaffetz (R-Utah) and Bobby Scott (D-Va.) have introduced a bill seeking to bring more data analysis into the criminal justice system. In the Senate, the Senate Judiciary Committee passed a bill in March that seeks to incorporate elements of data analytics in determining eligibility for sentencing credit.

Neither measure appears to directly change sentences imposed at the time of sentencing. However, both contain elements that would classify offenders into various risk groups and allow some to reduce their sentences through involvement in programs seen to reduce risk of recidivism. The result would be some offenders having the opportunity to get out earlier than others due to a variety of factors—some of which may be beyond an individual prisoner's control.